Why Individual Integrity Matters

[Gunnar M. Ekeløve-Slydal is the Acting Secretary General of The Norwegian Helsinki Committee.]

Ensuring individual integrity in international justice may at times have been perceived as a concern that can be accommodated by mere declarations and codes of conduct and compliance procedures. Not so anymore. I believe there has been a recognition that integrity is both a legally binding term within international courts, as well as a factor that can determine the failure or success of institutions. But more is needed.

Integrity concerns may in part explain the unprecedented engagement ahead of elections of key officials at the International Criminal Court (ICC) scheduled to take place this month, by civil society organizations, academics, and States Parties. Because of a range of integrity failures during recent years, the prevailing view is that the next ICC Prosecutor, President of the Bureau of the Assembly of States Parties (ASP), and other high officials of the Court must be exemplary not only in professional terms, but also as regards integrity (see, for example, Professor Gregory Gordon’s recent post on the selection of the next ASP President).

This may also be where the current consensus ends. It remains considerably less clear what this new focus on integrity should mean in concrete terms.

The ICC was for years criticised for only investigating African situations. This criticism was nominally correct, but the majority of the situations were either referred to the Court by States Parties or by the UN Security Council. Today, several investigations take place outside Africa; in Afghanistan, Bangladesh/Myanmar and Georgia.

There was also criticism for the way cases were selected and investigated by the Office of the Prosecutor (OTP), as several cases collapsed. It was, however, only in 2018 that my organization decided to go public in calling for an external inquiry, including by investigating possible individual wrongdoing of current and former officials of the OTP. We took that step because of the revelations by the European Investigative Collaborations in 2017 of serious breaches of professional and integrity standards by OTP staff and the first Prosecutor of the ICC, Luis Moreno-Ocampo.

We also relied on other sources, that pointed to a culture of “fear” and “intimidation” among staff members and described how quality control had been weakened under Moreno-Ocampo. His legacy still influenced the office. Both the first Prosecutor, and his Chef de cabinet, Silvia Fernández de Gurmendi, were named in a public letter of 12 March 2018 that we sent to the current ICC Prosecutor Fatou Bensouda.

It was not an easy decision to go public and ask for an inquiry into the conduct of a former ICC Prosecutor hailed in popular culture for going after suspected war criminals at high places, and of a person who had served in several key positions at the Court (as Chef de cabinet, Judge, and President). We were of course aware that the ICC had many enemies and by going public against OTP dysfunction, we risked making things worse for a struggling institution.

But my organization has a history of addressing integrity issues publicly, rather than only raising them discretely behind the scenes. Maybe it is part of a wider Nordic tradition that to demonstrate your support for an institution, you do not shy away from publicly criticizing it and appeal for effective measures to address failings. It is a sign of trust in the institution.

For criticism to be effective, according to this tradition, it must be constructive. To only denounce certain practices, without pointing to remedies and good examples that could lead to improvement, is not enough. External inquiries into institutional misbehaviour – widely used in the Nordic countries – are expected to produce advice on remedies, clarify and evaluate relevant facts, point to individual responsibility for any wrongdoing, and recommend criminal investigations if warranted by the facts.

A detailed response from Prosecutor Bensouda (dated 22 May 2018) to our letter outlined a range of measures initiated to build a culture of integrity and professionalism within her office. But our most serious concerns were left unaddressed. We therefore wrote in a letter to her dated 8 June 2018, that she had failed “to address the most serious allegations referred to in our letter, which implicate the first Prosecutor as well as his Chef de Cabinet at the time. An inquiry into possible misconduct by these persons who are no longer members of the ICC falls outside the mandate of the Internal Oversight Mechanism (IOM). This is why our letter argued for broader external inquiries.”

We have made the exchange of letters with Prosecutor Bensouda, as well as follow-up letters to Permanent Missions and the President of the Bureau of the ICC ASP O-Gon Kwon, available on the web site of the Norwegian Helsinki Committee. I still think we were right in issuing the letters and that it is part of the mandate of non-governmental organizations – as “informed observers” – to hold high officials to account. Our foremost allegiance should be to the victims of core international crimes who see the ICC as their only realistic hope of justice. If the ICC fails, it is of course of great consequence for its staff, funders and defenders, but it is worse for the victims. They would feel the direst consequences.

A further underpinning of our view that integrity failures must be addressed in the concrete, addressing individual failures publicly, came with the Integrity Project undertaken by the International Nuremberg Principles Academy and the Centre for International Law Research and Policy (‘CILRAP’), which included a 1-2 December 2018 conference in the Hague on ‘Integrity in International Justice’. The project recently published an anthology with 32 chapters written by the conference participants (Morten Bergsmo and Viviane E. Dittrich (editors), Integrity in International Justice, Torkel Opsahl Academic EPublisher, Brussels, 2020, 1,192 pp.).

The introductory chapter by the editors, CILRAP Director Morten Bergsmo and Deputy Director of the International Nuremberg Principles Academy Viviane E. Dittrich, provides a strong articulation of the reasons behind the renewed focus on integrity in justice. These include multilateralism being under pressure, and the fact that the biggest powers, China, India, Russia, and the United States, are all standing outside the ICC, “watching attentively its every move, noting any weakness that could serve their perceived future interests” (page 5). It quotes a series of statements by former US Ambassador John Bolton, Secretary of State Michael R. Pompeo, US Attorney General William Barr, and US National Security Adviser Robert O’Brien, which leave no doubt: the ICC is seen as a threat to US interests, being politicized, “ineffective, unaccountable”, and with “corruption and misconduct at the highest levels … and in the office of the prosecutor” (pages 6-7).

The chapter also refers to those who have defended the court, like the President of the Bureau of the ICC Assembly of States Parties, O-Gon Kwon, and ICC States Parties. But its most remarkable turn is its insistence on making individual integrity the main focus. – “However uncomfortable at times, an environment of increased scrutiny also provides a welcome opportunity to revisit the role of the individual in international justice institutions, not only the institutions and their systemic context” (page 9).

In this way, the anthology complements the report of the “Independent Expert Review (IER) of the ICC and the Rome Statute System”, which amounts to a systemic review (see Chapter 16 in the anthology by Jan Fougner, “On Whistle-Blowing and Inquiry in Public Institutions”). According to its editors, the anthology adds “an additional paradigm to the IER report, by exploring in detail the origins and meaning of the integrity standards, how awareness of integrity can be raised, and what contributes to reinforcing an integrity mindset in staff and a culture of integrity in the agency in question” (page 40).

Another recent publication, edited by Morten Bergsmo, Mark Klamberg, Kjersti Lohne and Christopher B. Mahony, Power in International Criminal Justice, further contributes to concretising what could be termed as an ‘integrity turn’ in international justice. In his introductory chapter, Bergsmo describes how a sociology of international criminal justice, unmasking power structures and informal social networks which may weaken institutional integrity and well-functioning, can draw on sociology of law traditions in Scandinavia and the US.

My own contribution to the integrity anthology presented above explores what Sir Thomas More (1478–1535) may offer in terms of principles and strategies relevant to how we can strengthen individual integrity within international justice institutions (Chapter 4, “Sir Thomas More and Integrity in Justice”). The short answer is that he has surprisingly much to offer. Even though his voice is influenced by his own time and struggles, which were quite different from ours, More’s integrity lessons still stand.

More considered conscience as the bedrock of personhood, and moral and professional integrity. It was, however, a conscience bound by Christian principles and by law; not by personal opinion. He referred to an ‘informed conscience’; shaped by years of study and reflection.

Already in his early humanist writings More had raised the fundamental integrity question: How to serve with integrity in a brutal political environment, full of intrigues, flattery, and dishonesty? The notion of an ‘informed’ conscience may be interpreted as an inner voice of truth, not based on spirited desires for honour or fame, but rather on faith and reason’s efforts to do as good as possible in every difficult circumstance.

Thomas More’s life and career consistently exemplify integrity as self-integration. He stood for something, not giving in to pressure, and at the same time, he was always willing to reason and provide arguments. He is not an example of ‘civil disobedience’ based on personal convictions. His reasoning and practice during his ultimate integrity test in his conflict with King Henry VIII over the unity of the church and the power of the king – which cost him his life – are instead closer to modern conceptions of professional integrity. This form of integrity is characterized by a mode of reasoning that calls for the actor to engage critically and creatively with the varied and sometimes conflicting demands of professional practice. Thomas More as a ‘first citizen’ was a professional, applying legal and theological arguments in line with professional standards and practice of his time.

His defence of the unity of the church may be seen as a reference to authoritative theological practice. In his conflict with King Henry VIII, he makes efforts to give his best reading of that practice. The same goes for his acting as a lawyer, throughout his career, and certainly in his own final case. In his defence, he provides what he believes is the best reading of English jurisprudence in a treason case like his.

It may seem paradoxical, but because More is not a modern man in the sense that he linked his conscience to private opinion, he becomes interesting in terms of professional integrity, which primarily refers to institutional practice.

For individuals considering whether to enter the world of justice professionals, there is great inspiration to take from him. He would tell them that there is a fundamental question anyone who considers working for justice institutions has to ask him- or herself: Will I be able to honour the promises of my profession, despite all the pressure, cynicism and temptations I will be exposed to? Will I be able to hold my spirited desires and appetite (for money, sex, luxury) governed by reason?

From More’s writings, we know that he believed that an initial determination to live up to integrity standards is not enough. His method was to continuously train himself in integrity by binding his conscience to the standards and promises of his profession, and by reflecting on how to moderate the effects of wickedness and evil. He knew well that institutions could be corrupted and manipulated, and how important leadership is in setting and practising high standards. Well-functioning institutions can improve societies and human affairs vastly. They should be protected.

A catalogue of some of the most frequent contemporary integrity failures in international institutions (outlined in sections 4.1 and 4.2. of my Chapter) would not be unknown to More. I suspect he would respond that to let undue pressure, material temptations, personal relationships, or lack of professional and moral convictions lead you away from professional duties would be the result of the lower parts of your soul being too dominant. The antidote would be to rebalance your soul and let reason rule. He would know well that this is easier said than done. To succeed may require hard work over a long time.

However, if you are going to advance in confronting tyranny and injustice, that is what is necessary. This is also what an institution such as a court promises. Maintaining professional integrity as a leader or staff member of such institutions requires conforming your conscience to the promises and aims of justice – and follow it.

This seems to me to be the essence of Sir Thomas More’s thoughts and practice on integrity. Without such integrity, vigilance by individual high officials or staff members, codes of conduct, and accountability mechanisms will not be enough.

This should be contemplated by both those who elect high officials to the ICC or other international institutions, and by those who stand for election.